In re Kimase Sambai (Deceased) (Succession Cause 184 of 2015) [2025] KEHC 5246 (KLR) (29 April 2025) (Ruling)
Neutral citation:
[2025] KEHC 5246 (KLR)
Republic of Kenya
Succession Cause 184 of 2015
JK Ng'arng'ar, J
April 29, 2025
IN THE MATTER OF KIMASE SAMBAI (DECEASED)
Between
Richard Kiprono Langat
Applicant
and
Paul Kipngeno Mase
1st Respondent
Richard Kipyegon Ruto
2nd Respondent
John Kiplangat Mase
3rd Respondent
Peter Kibet Bii
4th Respondent
Ruling
1.This Ruling is in respect to a Preliminary Objection dated 5th March 2025 and filed by the Applicant stating that the Notice of Motion Application dated 26th February 2025 was res judicata. He relied on the following grounds that: -I.Having been previously determined by the High Court between the same parties bide Judgement dated 9th July 2009 between Kiplangat Arap Sitienei (Deceased), the Applicant and Kimase Arap Sambai (now deceased)II.A similar issue had been raised prior to the issuance of the Judgement which directed the Land Registrar to cancel the illegally obtained Title Deeds and subdivided the land parcel referred to as Kericho/Kipsonoi/SS/321 into two portions between the parties herein.III.The Petitioner, after the demise of Kimase Sambai in Citation Cause Number 35 of 2012 cited the widow and the 1st Respondent herein and were both served on 30th January 2013, failed to enter appearance and the Petitioner filed this Succession Cause.IV.The Petitioner filed the Succession and a Grant was issued on 20th April 2017 in an equitable share between the 1st Respondent, Paul mase and the Petitioner to hold in trust for the respective families in this matter.
2.The Respondents did not file their response to the Preliminary Objection.
Applicant’s written submissions
3.Through his written submissions dated 13th March 2025, the Applicant submitted that the Respondents through their Notice of Motion Application dated 26th February 2025 sought stay of proceedings in the present Succession Cause pending the hearing and determination Kericho ELC Case Number 009 of 2018. He further submitted that the matter in Kericho ought to have been instituted in this court where the subject matter was situated.
4.It was the Applicant’s submission that the matter had been previously determined by Kericho High Court vide a Judgement dated 9th July 2009 and similar issues had been raised prior to the issuance of the Judgement. That the Judgement directed the Lands Registrar to cancel the illegally obtained Title Deeds and further subdivide the subject land, Kericho/Kipsonoi/SS/321 into two equal portions. He relied on sections 6, 8, 11 and 12 of the Civil Procedure Act.
Respondents’ written submissions.
5.Through their written submissions dated 20th March 2025, the Respondents submitted that their Application dated 26th February 2025 sought stay of these proceedings pending the hearing and determination of Kericho ELC Number 009 of 2018. That the Application was intended to prevent conflicting Judgements as the substantive issue was that the Land Registrar in Bomet unprocedurally and fraudulently cancelled Kericho/Kipsonoi/1072,1073 and 1074.
6.It was the Respondents’ submission that the Kericho ELC matter had not been determined and the claim of res judicata was premature. That the Applicant failed to prove that a similar case (2009 matter) had been heard and determined and they relied on section 107 of the Evidence Act. It was2009their further submission that even if the 2009 matter existed, the fraudulent cancellation of their Titles had not been litigated. They relied on Pop-in (Kenya) Ltd & 3 others vs Habib Bank AG Zurich (1990) KLR 609.
7.The Respondents submitted that the Preliminary Objection ought to be dismissed.
8.It was the Respondent’s submission that the Applicant was misleading the court by claiming for costs in non-existent legal proceedings. That the Applicant’s Bill of Costs should be struck out.
9.I have considered the Preliminary Objection dated 5th March 2025, the Applicant’s written submissions dated 13th March 2025 and the Respondent’s written submissions dated 20th March 2025. The only issue for my determination was whether the Preliminary Objection was sustainable.
10.What constitutes a Preliminary Objection was set out in the oft cited case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, where it was held that: -
11.In Daqare Transporters Limited v Zainab Hashi [2021] KEHC 2600 (KLR), Mogeni J. held: -
12.The Applicant contended that the Respondents through their Notice of Motion Application dated 26th February 2025 sought to stay the current proceedings pending the hearing and determination of Kericho ELC Number 69 of 2018. The Applicant further stated that the issues raised in Kericho ELC Number 69 of 2018 were res judicata as the same issued had been determined by Kericho High Court in Civil Suit Case Number 59 of 2003.
13.Section 7 of the Civil Procedure Act provides that: -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
14.The Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR) held that: -
15.I have looked at the Respondents’ Application dated 26th February 2025 and they attached the Amended Plaint in Kericho ELC Number 69 of 2018. The Respondents in the said suit were dissatisfied with the Land Registrar’s cancellation of title numbers Kericho/Kipsonoi/SS/ 1072, 1073 AND 1074 and sought a declaration that the cancellation was irregular and further sought the reinstatement of the said titles.
16.In supporting his claim of res judicata, the Applicant stated that the issue of the titles Kericho/Kipsonoi/SS/ 1072, 1073 and 1074 had been determined by the High Court in Kericho Civil Suit Number 59 of 2003. That the High Court ordered the cancellation of the said Titles and further ordered the subdivision of the suit land (Kericho/Kipsonoi/SS/321) into two equal portions.
17.The Applicant attached the Judgement in Kericho High Court Civil Suit Number 59 of 2003. I have looked at it and I have noted that the court did not discuss the issue of Kericho/Kipsonoi/SS/ 1072, 1073 and 1074. The Judgement found that the suit land, Kericho/Kipsonoi/SS/321 was to be divided equally between Kiplangat Arap Sitienei (deceased) and Kimase Arap Sambai (deceased). I have equally gone through the proceedings and I have noted that the suit land was subdivided after the Judgement in Kericho High Court Civil Suit Number 59 of 2003 had been delivered on 3rd July 2009. That it to say that the titles Kericho/Kipsonoi/SS/ 1072, 1073 and 1074 did not exist when the Judgment was being delivered and as such, it meant that the said titles were not litigated before Kericho High Court Civil Suit Number 59 of 2003 and could not therefore be res judicata.
18.In the end, it is my finding that the Preliminary Objection dated March 5, 2025 had no merit and is dismissed with costs to the Respondents.
RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 29TH DAY OF APRIL, 2025..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of for the J.K.Koech for the Petitioner, N/A for J.K. Rono for the Respondents. Siele/Susan (Court Assistants).